UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELLANCER ALLEN MCGRADY, a/k/a
Lance,
Defendant-Appellant.

No. 99-4384

Appeal from the United States District Court

for the Western District of North Carolina, at Shelby.
Richard L. Voorhees, District Judge.
(CR-94-44)
Submitted: May 31, 2001
Decided: June 29, 2001
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL
Roger T. Smith, Asheville, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Jerry W. Miller, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

UNITED STATES v. MCGRADY

OPINION
PER CURIAM:
Ellancer Allen McGrady was originally sentenced to a term of life
imprisonment following a jury trial and convictions for conspiracy to
possess with intent to distribute cocaine and cocaine base, as well as
various related counts. He appealed his sentence and we remanded for
resentencing on the issue of whether McGrady possessed a firearm
and therefore was subject to an enhancement pursuant to U.S. Sentencing Guidelines Manual 2D1.1(b)(1) (1998). On remand, the district court held a second sentencing hearing and again applied the
enhancement. McGrady appeals, contending that the district court
erred in applying the enhancement. McGrady also attempts to challenge his sentence, arguing that the findings the court made regarding
drug quantity and possession of a weapon should have been presented
to a jury, relying upon Apprendi v. New Jersey, 530 U.S. 466 (2000).
Finding no error, we affirm the judgment.
First, even if the Apprendi issues McGrady wishes to raise were
before the court, his claims are without merit. As to drug quantity, his
indictment specified an amount of cocaine and crack cocaine sufficient to expose McGrady to a life sentence. The indictment was read
to the jury during jury instructions. Therefore, there is no error under
Apprendi. United States v. Richardson, 233 F.3d 223, 231 (4th Cir.
2000), petition for cert. filed, Mar. 19, 2001 (No. 00-9234). It also
was not error to make a determination that McGrady possessed a firearm for sentencing purposes. Sentencing enhancements that do not
increase the statutory maximum do not violate the principles of
Apprendi. United States v. Kinter, 235 F.3d 192, 200-01 (4th Cir.
2001), cert. denied, ___ U.S. ___, 69 U.S.L.W. 3618 (U.S. Mar. 19,
2001) (No. 00-8591).
Section 2D1.1(b)(1) of the Sentencing Guidelines calls for the
imposition of a two-level enhancement "[i]f a dangerous weapon
(including a firearm) was possessed. The enhancement should be
applied if the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense." USSG 2D1.1, comment. (n.3). In order to avoid application of the adjustment, the defendant must show that the connection between the drug offense and the

UNITED STATES v. MCGRADY

dangerous weapon possession was clearly improbable. United States

v. Harris, 128 F.3d 850, 852-53 (4th Cir. 1997). The district courts
factual findings pursuant to USSG 2D1.1(b)(1) are reviewed for
clear error. United States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990).
Our review of the record leads us to conclude that the district court
did not clearly err in applying this enhancement. Further, to the extent
that McGrady alleges that Sherry Waters, the Governments witness,
was not credible, the district courts credibility determination is not
reviewable on appeal. United States v. Saunders, 886 F.2d 56, 60 (4th
Cir. 1989).
We therefore affirm the judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED